BILL ANALYSIS Ó
SB 1407
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1407 (Leno) - As Amended: June 12, 2012
As Proposed to be Amended
SENATE VOTE : 33-0
SUBJECT : Medical Information: Disclosure
KEY ISSUE : SHOULD A PARENT WHO HAS HAD A CHILD REMOVED BY THE
DEPENDENCY COURT BE PROHIBITED FROM ACCESSING THE CHILD'S MENTAL
HEALTH RECORDS, UNLESS A COURT ORDERS OTHERWISE?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill prohibits a psychotherapist from releasing a child's
mental health records or information based on an authorization
signed by a parent or guardian from whom the child has been
removed in a dependency proceeding, unless a court finds that
such a release would not be detrimental to the child and orders
the disclosure. This bill only applies if the therapist knows
the child has been removed from his or her parents' custody and
made a dependent of the juvenile court. The bill is supported
by children's advocacy groups, mental health professionals and
privacy rights organizations which believe it is necessary to
protect abused or neglected children. It is opposed by the
Family Law Section of the State Bar unless amended to flip the
burden so that parents are able to access their children's
mental health records, unless release of the records is shown to
be detrimental to their children.
SUMMARY : Prohibits the disclosure of a dependent child's mental
health records or information based on the request of the
child's parent or guardian, unless the court orders otherwise.
Specifically, this bill :
1)Provides that a psychotherapist, who knows that a child has
been removed from his or her parent's or guardian's custody in
dependency proceedings, shall not release the child's mental
health records and shall not disclose information about the
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child based on an authorization signed by the parent or
guardian, unless authorized to do so in a court order issued
after a finding by the court that the order would not be
detrimental to the child. If that occurs, requires the parent
or guardian to present a copy of the court order to the
psychotherapist before any records or information may be
released.
2)Provides that a psychotherapist does not have a duty to
inquire or investigate whether a child has been removed from
his or her parent's or guardian's custody in dependency
proceedings when presented by a parent with an authorization
to release mental health records.
3)Provides that the prohibition in #1), above, does not limit a
psychotherapist's existing authority to deny release of
records if the psychotherapist determines that release of the
records would have a detrimental effect on the
psychotherapist's professional relationship with the child or
the child's physical safety or psychological well-being,
notwithstanding that a juvenile court may have issued an order
authorizing the parent to access such records. Provides that
a psychotherapist's immunity from liability for decisions
regarding release of records in these instances continues to
be governed by existing law.
EXISTING LAW :
1)Specifies, under the federal Health Insurance Portability and
Accountability Act (HIPAA), privacy protections for patients'
protected health information and generally provides that a
covered entity, as defined, may not use or disclose protected
health information except as specified or as authorized by the
patient in writing. (45 C.F.R. Section 164.500 et seq.)
2)Prohibits a health care provider, health care service plan, or
contractor from disclosing medical information, as defined,
regarding a patient, enrollee, or subscriber without first
obtaining an authorization, except as specified. Provides
that a valid authorization must comply with HIPAA and the
California Confidentiality of Medical Information Act (CMIA).
(Civil Code Sections 56.10(a) and 56.11.)
3)Authorizes minors 12 years of age and older to consent to
mental health treatment or counseling services if, in the
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opinion of the attending professional person, the minor is
mature enough to participate intelligently in the mental
health treatment or counseling services. (Health & Safety
Code Section 124260.)
4)Provides that an adult patient of a health care provider, any
minor patient authorized by law to consent to medical
treatment, and any patient representative shall be entitled to
inspect the patient's records upon presenting to the health
care provider a written request for those records and upon
payment of reasonable clerical costs incurred in locating and
making the records available. (Health & Safety Code Section
123110.)
5)Provides that representatives are not entitled to inspect or
obtain copies of a minor patient's medical records if the
minor has a right to consent to the medical care or where the
health care provider determines that access to the records
would have a detrimental effect on the provider's professional
relationship with the minor or the minor's physical safety or
psychological well-being. Provides that, absent bad faith,
there is no liability for a health care provider's decision
regarding release of records based on detrimental effect to
the minor. (Health & Safety Code Section 123115(a).)
6)Provides a cause of action against any person or entity who
negligently releases confidential information or records in
violation of the CMIA. (Civil Code Section 56.36(b).)
7)Provides that a minor may be removed from the physical custody
of his or her parents and made a dependent of the juvenile
court as the result of abuse or neglect. (Welfare &
Institutions Code Section 300.)
COMMENTS : Approximately 55,000 children in California today
have, as the result of abuse or neglect, been removed from their
parents' physical custody and reside in out-of-home placement as
part of the foster care system. When a child is removed from
his or her parent's custody in dependency proceedings, the court
may temporarily limit the parent's authority over developmental
or educational decisions and medical care, including the
administration of psychotropic medications, pending
reunification or termination of parental rights.
This bill provides that a therapist may only release the mental
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health information of a dependent child to a parent without
physical custody of the child if there has been a court order to
release the information, made after a court finding that such a
release would not be detrimental to the child. In support of
this bill, the author writes:
California law allows parents whose children have been
removed from their care because of abuse, abandonment, or
neglect to access their children's mental health information,
subject to some discretion by the therapist. . . . A parent
who has lost physical custody of a child as a result of a
court order may not be acting in their child's best interest
when authorizing use of the child's mental health treatment
information, and may use this confidential information to
further his or her own legal purposes, undermining the
child's stated wishes or best interests. Treatment of a
child who has experienced abuse or neglect requires building
a sense of trust, autonomy and personal boundaries. Children
who lose trust in the confidentiality of their communications
may be unwilling to trust future therapists, social workers
or counselors.
This bill requires a court order before a psychotherapist may
release mental health information to a parent whose child has
been removed because of abuse or neglect . This bill prohibits a
psychotherapist from disclosing the mental health records or
information of a child based on an authorization signed by the
parent or guardian of that child if that child has been removed
from the physical custody of that parent in dependency
proceedings and the psychotherapist knows about the removal,
unless a court orders otherwise. A court may only do so if it
finds that allowing the parent to access the child's mental
health records would not be detrimental to the child.
Both HIPAA and the California CMIA protect the privacy of
medical information on a patient's medical history, mental or
physical condition, or treatment in the possession of a health
care provider. A health care provider may not use or disclose
protected health information except as specified or as
authorized by the patient or patient's representative. Parents
are generally considered their child's representative for
disclosure of medical information. However, once mental health
records have been released to a parent, there are few limits on
their use.
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Current law provides an exception to protect the child patient.
Health care providers need not release information to a minor's
representative if the health care provider determines releasing
the information would have a detrimental effect on the
provider's professional relationship with the minor, or the
minor's physical safety or psychological well-being. Moreover,
absent bad faith, a therapist will not be held liable for his or
her decision regarding release of records based on detrimental
effect to the minor. This bill does not affect these
provisions.
This bill instead creates stronger protections for the mental
health records of children who have been removed from their
parents due to abuse or neglect and made dependents of the
juvenile court. Under this bill, therapists who know that a
child patient has been removed from a parent's custody in
dependency proceedings will be prohibited from releasing the
child's mental health records to a parent, whether or not the
parent signs an authorization that would otherwise be valid.
Parents are not completely denied access to their child's
records. Parents who want to access their child's mental health
record can still request authorization from the court and a
court can make such an order, after finding that the release of
records would not be detrimental to the child. A therapist has
no duty to inquire or investigate whether the child was a
dependent child. The limitation on providing information or
records only applies if the therapist knows the child has been
removed from the parent's custody by the dependency court.
Even if a court orders release of the records, a therapist could
still refuse to release the records if the therapist determines
that the release would have a detrimental effect on the
provider's professional relationship with the child, or the
child's physical safety or psychological well-being.
Proposed Amendments : The author proposes amendments to
strengthen the bill by removing an exception for hospitals that
is no longer needed and clarifying that only mental health
records and information are covered by the bill. In addition,
some technical corrections are necessary. The following
proposed amendments accomplish these objectives:
On page 3, line 9, after "disclose" insert: mental health
Delete subdivision (c), page 3, lines 25-29, and renumber
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remaining subdivisions
Delete subdivision (c), page 5, lines 3-7, and renumber
remaining subdivisions
On page 5, line 37, after '(a)" insert: (1)
On page 6, line 5, after "disclose" insert: mental health
On page 6, line 14, delete "(b)" and insert: (2) Renumber
remaining subdivisions
On page 7, line 29, after "parent" insert: or guardian
Delete subdivision (d), page 7, lines 35-37
ARGUMENTS IN SUPPORT : Supporters write that this bill protects
the privacy rights of children who are removed from their
parents' care due to abuse or neglect and protects against harm
caused by the inappropriate use of sensitive mental health
information, unless a court orders otherwise. The bill ensures
that these children's best interests are taken into
consideration before sensitive mental health records are
released. The bill, supporters argue, strikes the appropriate
balance between parental autonomy and the privacy and treatment
needs of foster children.
ARGUMENTS IN OPPOSITION : The Family Law Section of the State
Bar (Flexcom) opposes this bill, unless it is amended. Flexcom
writes that it "would withdraw its opposition if the bill were
amended to place the burden on the child welfare agency or other
counsel to show, by clear and convincing evidence, that the
parent or guardian's continued access to or ability to authorize
the release of mental health information is detrimental to the
child, while family reunification services are being provided."
Flexcom argues that this approach would better reflect the
dependency system's policy to support family reunification.
However, such an amendment would, by shifting the burden, have
fiscal consequences to already struggling child welfare agencies
and could result in release of records even when detrimental to
a child.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Academy of Child and Adolescent Psychiatry
California Council of Community Mental Health Agencies
California Court Appointed Special Advocates
Children's Advocacy Institute
The Children's Partnership
East Bay Children's Law Offices
Junior Leagues of California - State Public Affairs Committee
Kaiser Permanente (if amended; to a previous version of the
bill)
Legal Advocates for Children and Youth
Mental Health Association of San Francisco
National Association of Social Workers
Privacy Rights Clearinghouse
Opposition
Family Law Section of the State Bar (unless amended)
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334